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NO. 15-40238

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS, et al.,

Plaintiffs-Appellees,
v.

UNITED STATES OF AMERICA, et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS AT BROWNSVILLE

No. 1:14-cv-00254
The Honorable Andrew S. Hanen
United States District Court Judge

AMICI CURIAE BRIEF OF MEMBERS OF CONGRESS, THE AMERICAN

CENTER FOR LAW & JUSTICE, AND THE COMMITTEE TO DEFEND
THE SEPARATION OF POWERS IN OPPOSITION TO APPELLANTS’
EMERGENCY MOTION FOR STAY PENDING APPEAL

JAY ALAN SEKULOW AMERICAN CENTER FOR LAW & JUSTICE

DAVID FRENCH* 201 Maryland Ave., NE
JORDAN SEKULOW* Washington, DC 20002
TIFFANY BARRANS* Phone: (202) 546-8890
MILES TERRY Fax: (202) 546-9309
CARLY F. GAMMILL*
JOSEPH WILLIAMS*

* Not admitted in this jurisdiction

Attorneys for Amici Curiae

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NO. 15-40238

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

STATE OF TEXAS, et al.,

Plaintiffs-Appellees,
v.

UNITED STATES OF AMERICA, et al.,

Defendants-Appellants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF TEXAS AT BROWNSVILLE

No. 1:14-cv-00254
The Honorable Andrew S. Hanen
United States District Court Judge

CERTIFICATE OF INTERESTED PERSONS

The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges of
this Court may evaluate possible disqualification or recusal.

Defendants-Appellants

• United States of America

• Jeh Charles Johnson, Secretary of Homeland Security
• R. Gil Kerlinkowske, Commissioner of U.S. Customs and Border
Protection
• Ronald D. Vitiello, Deputy Chief of U.S. Border Patrol, U.S. Customs
and Border of Protection
• Sarah R. Saldana, Director of U.S. Immigration and Customs
Enforcement
• Leon Rodriguez, Director of U.S. Citizenship and Immigration Services
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Attorneys for Defendants-Appellants
Scott R. McIntosh
U.S. Department of Justice
Civil Division, Appellate Staff
Room 7259
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Beth S. Brinkmann, Esq.
U.S. Department of Justice
Civil Division, Appellate Staff
Room 3135
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Plaintiffs-Appellees
• State of Texas
• State of Alabama
• State of Georgia
• State of Idaho
• State of Kansas
• State of Louisiana
• State of Montana
• State of Nebraska
• State of South Carolina
• State of South Dakota
• State of Utah
• State of West Virginia
• State of Wisconsin
• State of North Dakota
• State of Ohio
• State of Oklahoma
• State of Florida
Page: 3 Date Filed: 03/24/2015
03/18/2015
Jeffrey A. Clair, Esq.
U.S. Department of Justice
Civil Division, Appellate Staff
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Kyle R. Freeny
U.S. Department of Justice
Civil Division
P.O. Box 883
Washington, DC 20044-0000
William Ernest Havemann
U.S. Department of Justice
Suite 7515
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
• State of Arizona
• State of Arkansas
• State of Tennessee
• State of Nevada
• PAUL R. LEPAGE,
Governor, State of Maine
• PATRICK L. MCCRORY,
Governor, State of North
Carolina
• C. L. "BUTCH" OTTER,
Governor, State of Idaho
• PHIL BRYANT, Governor,
State of Mississippi
• ATTORNEY GENERAL
BILL SCHUETTE
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Attorneys for Plaintiffs-Appellees

Scott A. Keller, Solicitor for the State of Texas

Office of the Solicitor General 209 W. 14th Street
for the State of Texas Austin, TX 78701
209 W. 14th Street
Austin, TX 78701 Matthew Hamilton Frederick, Deputy
Solicitor General
J. Campbell Barker, Deputy Solicitor Office of the Solicitor General
General for the State of Texas
Office of the Solicitor General 209 W. 14th Street
for the State of Texas Austin, TX 78701
7th Floor (MC 059)
209 W. 14th Street Alex Potapov
Austin, TX 78701 Office of the Solicitor General
for the State of Texas
April L. Farris 209 W. 14th Street
Office of the Solicitor General Austin, TX 78701

Amici Curiae

American Center for Law and Justice 1

The ACLJ’s Committee to Defend the Separation of Powers 2
Senator Ted Cruz
Senator John Cornyn
Representative Bob Goodlatte
Representative Lamar Smith

Attorneys for Amici Curiae

Jay Alan Sekulow

David French
Jordan Sekulow

1
The American Center for Law and Justice has no parent corporation, and no publicly held
company owns 10% or more of its stock.
2
The ACLJ’s Committee to Defend the Separation of Powers is made up of individual Americans
who stand in favor of this action and has no parent corporation, and no publicly held company
owns 10% or more of its stock.
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Tiffany Barrans
Miles Terry
Carly F.Gammill
Joseph Williams
201 Maryland Ave., N.E.
Washington, DC 20002
(202) 546-8890
(202) 546-9309 (facsimile)

/s/ Jay Alan Sekulow

JAY ALAN SEKULOW
Counsel for Amici
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TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................. ii

INTEREST OF AMICI............................................................................................ 1

SUMMARY OF ARGUMENT .............................................................................. 1

ARGUMENT .......................................................................................................... 2

I. Appellants Will Suffer No Harm Absent a Stay. …...……………….…3

II. A Stay Will Substantially Harm Appellees and

Runs Counter to the Public Interest ........................................................ 3

III. The Constitutional Infirmities of the DHS

Directive Demonstrate that Appellants Are Not
Likely to Succeed on the Merits. ............................................................ 5

A. The DHS Directive Fails the Constitutional

Test in Youngstown. ......……………..……………….… ................. 5

B. The DHS Directive Exceeds Statutory Delegated

Authority ......……………..……………….… .................................. 8

CONCLUSION ..................................................................................................... 10

CERTIFICATE OF SERVICE

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TABLE OF AUTHORITIES

CASES
Fiallo v. Bell, 430 U.S. 787 (1977) ------------------------------------------------------- 7

Nken v. Holder, 556 U.S. 418, 433 (2009) ----------------------------------------------- 2

Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott, 734 F.3d
406 (5th Cir. 2013) ----------------------------------------------------------------------- 2

Ruiz v. Estelle, 666 F.2d 854 (5th Cir. 1982) -------------------------------------- 2, 3, 4

Virginian R. Co. v. United States, 272 U.S. 658 (1926) -------------------------------- 2

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952) ---------------- 5, 6, 7

STATUTES
6 U.S.C. § 202(5) ---------------------------------------------------------------------------- 9

8 U.S.C. § 1103 (a)(3) ---------------------------------------------------------------------- 8

8 U.S.C. § 1151(b)(2)(A)(i) ---------------------------------------------------------------- 7

8 U.S.C. § 1182(a)(9)(B)(i)(ii)------------------------------------------------------------- 7

8 U.S.C. § 1182(a)(9)(C)(i)(I) ------------------------------------------------------------- 9

8 U.S.C. § 1182(a)(9)(C)(iii)--------------------------------------------------------------- 9

8 U.S.C. § 1201(a)--------------------------------------------------------------------------- 7

8 U.S.C. § 1255 ------------------------------------------------------------------------------ 7

U.S. Const. art. I, § 7, cl. 2 ----------------------------------------------------------------- 8

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INTEREST OF AMICI 3

Amici, United States Senators Ted Cruz and John Cornyn, and Representatives

Bob Goodlatte and Lamar Smith, are currently serving in the 114th Congress. This

brief is also filed on behalf of the American Center for Law & Justice (ACLJ) and

its Committee to Defend the Separation of Powers, which consists of 183,128

Americans. Amici previously participated in the district court, see ACLJ Amici

Curiae Brief, and are committed to the constitutional principle of separation of

powers, which Appellants’ unconstitutional and unprecedented directive on

immigration violates.

SUMMARY OF ARGUMENT

This Court should maintain the status quo preserved by the preliminary

injunction until a final decision is reached on the merits. Appellants will suffer no

harm in the absence of a stay, while issuing the stay will substantially harm

Appellees and runs counter to public interests. Furthermore, Appellants have not

demonstrated a likelihood of success on the merits. A stay would also endanger

fundamental constitutional principles at stake in this case. Therefore, to protect the

rule of law and the separation of powers, as well as the status quo, this Court

should deny Appellants’ emergency motion for a stay pending appeal.

3
No counsel for any party in this case authored this brief in whole or in part. No person or entity
aside from the ACLJ, its members, or its respective counsel made a monetary contribution to the
preparation or submission of this brief. Amici file under the authority of Fed. R. App. P. 29(a).
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ARGUMENT

Appellants fail to establish the threshold burdens to justify a stay. “A stay is

not a matter of right, even if irreparable injury might otherwise result.” Nken v.

Holder, 556 U.S. 418, 433 (2009) (emphasis added) (citation omitted). “It is

instead ‘an exercise of judicial discretion,’ and ‘[t]he propriety of its issue is

dependent upon the circumstances of the particular case.’” Id. (quoting Virginian

R. Co. v. United States, 272 U.S. 658, 672-73 (1926)). Because “[a] stay is an

intrusion into the ordinary processes of administration and judicial review,” id. at

427 (quotation marks omitted), “[t]he party requesting a stay bears the burden of

showing that the circumstances justify [it],” id. at 433-34.

This Court considers four factors in evaluating a request for a stay: (1) whether

the movant will suffer irreparable harm absent a stay; (2) whether a stay will

substantially harm the other parties; (3) whether a stay serves the public interest;

and (4) whether the movant has made a showing of likelihood of success on the

merits. See Planned Parenthood of Greater Tex. Surgical Health Servs. v. Abbott,

734 F.3d 406, 410 (5th Cir. 2013). Importantly, this Court has affirmed that

“[l]ikelihood of success remains a prerequisite in the usual case,” Ruiz v. Estelle,

666 F.2d 854, 857 (5th Cir. 1982), and held that “[o]nly ‘if the balance of equities

(i.e. consideration of the other three factors) is . . . heavily tilted in the movant’s

favor’ will we issue a stay in its absence, and, even then, the issue must be one

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with patent substantial merit,” id. (emphasis added) (quotation marks omitted).

I. Appellants Will Suffer No Harm Absent a Stay.

Appellants argue that the Government will suffer irreparable harm absent a

stay. See Appellants’ Motion at 1, 17-18. But the district court already concluded

that the Government is free to “continue to prosecute or not prosecute . . . illegally-

present individuals, as current laws dictate.” Order at 119. Thus, contrary to

Appellants’ contention, see Appellants’ Motion at 17, the injunction in no way

“interfere[es] with immigration enforcement.” Appellants remain free to maintain

border security, as well as to enforce every immigration law passed by Congress

and signed by the President, and all immigration regulations, except the DHS

Directive that created the DAPA and modified DACA programs (“DHS

Directive”). That the injunction may pose an inconvenience for Appellants, see id.

at 17 (arguing that “[d]eferred action helps immigration officials distinguish

criminals and other high-priority aliens from aliens who are not priorities for

removal”), or require them to halt “preparatory work necessary for

implementation” of the DHS Directive, id. at 18, does not mean it results in

irreparable harm.

II. A Stay Will Substantially Harm Appellees and Runs Counter to the
Public Interest.

A stay of the preliminary injunction would substantially harm Appellees and the

very people Appellants claim to want to help. In granting the preliminary

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injunction, the district court aptly held, the “equities strongly favor an injunction to

preserve the status quo.” 4 Order at 121. It concluded that “there will be no

effective way of putting the toothpaste back in the tube” if the DHS Directive was

not enjoined until a final decision is reached on the merits. Id. at 116. As the

district court recognized, “it is clear that the DHS Directive will . . . affect state

programs” and, therefore, implementation of the DHS Directive will substantially

harm Appellees. Id. at 24. Appellees have only two options when confronting the

DHS Directive: “full compliance with a [legally] challenged action or a drastic

restructure of a state program” that could be forcibly rolled back in the future once

this litigation is resolved. Id. at 27.

The district court also recognized that preserving the status quo was the only

way to protect the interests of over four million individuals whose lives will be

negatively impacted should the Government proceed with granting substantive

benefits under the programs only to later strip those benefits should the court

ultimately hold the programs are unlawful or unconstitutional. Id. at 121. If

Appellants were allowed to begin implementing the DHS Directive, which could

be invalidated by subsequent court decisions on the merits, substantial harm would

4
Indeed, the fact that the injunction was issued prior to implementation of the DHS Directive,
thus maintaining the status quo between the parties, makes a stay wholly inappropriate, as the
purpose of a stay pending appeal is “to maintain the status quo pending a final determination on
the merits of the suit.” Ruiz, 650 F.2d at 565. In other words, because the injunction here
maintains the status quo, a stay of that injunction would necessarily serve to alter the status quo.
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come to Appellees and the immigrant communities Appellants allege these

programs help.

III. The Constitutional Infirmities of the DHS Directive Demonstrate that

Appellants Are Not Likely to Succeed on the Merits.

As discussed supra in Parts I and II, not only is the balance of equities not

“heavily tilted” in favor of Appellants, it is clearly tilted in favor of Appellees, thus

requiring the usual showing of a likelihood of success on the merits—a showing

Appellants have failed to make. Appellants wholly fail to address the constitutional

arguments against the DHS Directive. See Appellants’ Motion at 14-16. While the

district court reserved ruling on these arguments, see Order at 122, they remain

before the court and serve as clear impediments to Appellants’ success in this case.

The DHS Directive creates a new class—the roughly 4 million parents of U.S.

citizens (and lawful permanent residents) who are unlawfully in the United

States—and grants members of the class deferred removal (among other benefits)

if they meet the basic eligibility requirements. Am. Compl. at 20-21. Appellants’

creation of a categorical, class-based program is neither moored in constitutional

authority nor in authority delegated by a lawful statute passed by Congress.

A. The DHS Directive Fails the Constitutional Test in Youngstown.

By contradicting Congress’s express and implied intent, the DHS Directive

violates the test articulated in Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S.

579 (1952). When the President acts within an area generally considered to be
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under the constitutional authority of Congress, as he has done here, courts have

applied Justice Jackson’s three-tier framework articulated in Youngstown Sheet &

Tube Co. v. Sawyer. 343 U.S. 579. According to Youngstown, when the President

acts pursuant to an authorization from Congress, his power is “at its maximum.”

Id. at 635-36. When Congress is silent on the matter, “there is a zone of twilight in

which he and Congress may have concurrent authority, or in which its distribution

is uncertain.” Id. at 637. Yet, when the President acts in conflict with Congress’s

expressed or implied intent, his power is at its “lowest ebb, for then he can rely

only upon his own constitutional power minus any constitutional powers of

Congress over the matter.” Id.

Tier one of the framework, which entails consent by Congress, is inapplicable

to the present analysis by the President’s own admission. He claims that he had to

act because Congress failed to act. Am. Compl. at 19. Nor is the DHS Directive

saved by the “zone of twilight.” Critically, Congress’s refusal to enact the

President’s preferred policy is not “silence”; it represents the constitutional system

working as intended. Congress has enacted extensive immigration laws—they are

simply not enacted in the manner the President prefers. Differing policy

preferences do not provide license to, as President Obama said, “change the law.”

Id. at 3, 19.

Congress has created a comprehensive immigration scheme under the

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Immigration and Naturalization Act (“INA”), which expresses its desired policy as

to classes of aliens—but the class identified by the DHS Directive for categorical

relief is unsupported by the scheme or policy. The Supreme Court, in unambiguous

terms, has recognized Congress’s “sole[] responsibility” for determining “[t]he

condition of entry of every alien, the particular classes of aliens that shall be denied

entry, the basis for determining such classification, [and] the right to terminate

hospitality to aliens.” Fiallo v. Bell, 430 U.S. 787, 796 (1977) (quotation marks

omitted). In this same vein, Congress also has exclusive authority to determine

through legislation when hospitality should be extended to a broad class of aliens.

But Congress has elected not to create an avenue of hospitable relief, such as

deferred action, for the class defined in the DHS Directive.

Turning to the third tier, the creation of a new avenue for parents of a U.S.

citizen or permanent resident to remain lawfully in this country conflicts with

Congress’s expressed and implied intent. Congress has not authorized deferred

action for the class the DHS Directive targets. To the contrary, the Congress

enacted burdensome requirements to allow these parents entry and the ability to

stay in the United States. See 8 U.S.C. §§ 1151(b)(2)(A)(i), 1182(a)(9)(B)(i)(ii),

1201(a), 1255. Finding themselves in conflict with Congress’s intent, under the

third tier of Youngstown, Appellants are left to rely exclusively on the powers

vested in the Executive under Article II of the Constitution. Yet, the Supreme

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Court has consistently stressed Congress’s plenary power over immigration law

and policy, except in rare cases of foreign affairs, which is not implicated here.

The comprehensive nature of the INA and Congress’s pre-determination of

limited avenues for hospitable relief leave no room for Appellants’ creation of a

categorical avenue of relief to those designated by law as unlawfully present. To

find otherwise would allow executive action to disrupt the delicate balance of

separation of powers, obliterate the Constitution’s Presentment Clause, U.S. Const.

art. I, § 7, cl. 2, and ignore the exclusive authority of Congress to set laws and

policy on immigration matters. Thus, rather than the injunction “imping[ing] on

core Executive functions,” Appellants’ Motion at 17, it is the DHS Directive that

directly impinges on core congressional functions.

B. The DHS Directive Exceeds Statutory Delegated Authority.

The DHS Directive defies Congress’s exclusive authority over immigration

with the intention, as President Obama has admitted, of setting a new policy and

creating new law. Appellants have mistakenly relied on authority generally granted

to the Secretary of Homeland Security in section 103(a)(3) of the INA. 8 U.S.C. §

1103(a)(3). Section 103(a)(3) specifically limits the delegated authority of the

Secretary for those actions that are “necessary for carrying out [its] authority under

the provisions of this chapter.” Id. The chapter in no way gives Appellants the

authority to create out of whole cloth an extensive, categorical deferred action

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program that grants affirmative legal benefits. Nor would such a program be

necessary to carry out the authority delegated to the Secretary.

Similarly, while The Homeland Security Act does make the Secretary of DHS

responsible for “[e]stablishing national immigration enforcement policies and

priorities,” 6 U.S.C. § 202(5) (2012), there is a substantial difference between

priorities for enforcement, which allow the agencies tasked with carrying out the

law to focus their limited resources, and creating enforcement-free zones for entire

categories of unlawful aliens. 5

The removal of unlawful aliens carries enormous importance to the overall

statutory scheme, but the DHS Directive does not just articulate priorities for

removal, it grants legal benefits on a categorical basis to current illegal aliens. By

granting illegal aliens lawful presence (for purposes of 8 U.S.C. §

1182(a)(9)(C)(i)(I)) during the deferred period, Appellants violate the express and

implied intent of Congress. Appellants’ Motion, Attach. 5, at 13. Congress

expressly limited Appellants’ ability to grant waivers of grounds of admissibility

for any unlawful alien who has been present in the United States for over a year

and has been previously removed. See id. § 1182(a)(9)(C)(iii). Thus Appellants’

blanket grant of “lawful presence” to aliens who would otherwise be inadmissible

5
Neither Appellants’ expressed enforcement priorities nor their authority to set these priorities
has been challenged in this suit, and the district court expressly preserved the Appellants’
authority to set enforcement priorities enjoining only the DAPA and modified DACA programs.
Order at 119.
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for the prescribed time exceeds executive authority and contravenes Congress’s

intent. Appellants subverted the very law that they were charged with enforcing.

CONCLUSION

Appellants have failed to show that any of the factors for granting a stay

weigh in their favor. The absence of a stay poses no harm to Appellants, while

issuing the stay will harm Appellees and the immigrant communities who may

apply for DAPA and modified DACA. Moreover, Appellants have failed to

demonstrate a likelihood of success on the merits, utterly ignoring significant

constitutional arguments raised below that preclude such success. Our

constitutional system enshrines the fundamental principles of separation of powers

and checks and balances in order to preserve fairness and freedom for all

Americans and all communities that make up the diverse fabric of our nation. To

ensure these principles are preserved, this Court should deny Appellants’

Emergency Motion to Stay the Preliminary Injunction Pending Appeal.

Respectfully Submitted,

JAY ALAN SEKULOW AMERICAN CENTER FOR LAW & JUSTICE

DAVID FRENCH* 201 Maryland Ave., NE
JORDAN SEKULOW* Washington, DC 20002
TIFFANY BARRANS* Phone: (202) 546-8890
MILES TERRY Fax: (202) 546-9309
CARLY F. GAMMILL*
JOSEPH WILLIAMS* Attorneys for Amici Curiae

* Not admitted in this jurisdiction

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CERTIFICATE OF SERVICE

In compliance with Fed. R. App. P. 25 and 5th Cir. I.O.P. 25, I hereby

certify that on this 18th day of March, 2015, I electronically filed the

foregoing Amici Brief with the Clerk of the Court by using the CM/ECF

system. Notice of this filing will be sent by operation of the Court’s

electronic filing system to all parties indicated on the electronic filing

receipt. All other parties will be served via regular U.S. Mail. Parties may

access this filing through the Court’s electronic filing system.

/s/ Jay Alan Sekulow

JAY ALAN SEKULOW
AMERICAN CENTER FOR
LAW & JUSTICE
201 Maryland Ave., N.E.
Washington, D.C. 20002
Phone: (202) 546-8890
Fax: (202) 546-9309
sekulow@aclj.org